Last year I wrote an article entitled Whether to wake those sleeping dogs? I discussed developments in the Irish case law to strike out proceedings for delay. The recent judgment of Mr Justice Max Barratt on 3 May 2019 in Mulligan v Wilkie and Flanagan Solicitors is the clearest indication yet that the Courts in Ireland are not prepared to tolerate unjustified delay in litigation.
The concise judgment outlined the case law that had recently preceded it and, as Barrett J eloquently put it, enough ink has been spilled in the judgments in the just mentioned cases to give the clearest of guidance to this Court as to the principles it should bring to bear in this application, without any need for the Court to expand further.
Background & Delay
This case related to a claim of professional negligence by the Claimant against the Defendant arising from advice given in 2005/2006. Barrett J had significant regard to the chronology of events that led to the strike out motion for delay.
He noted that the proceedings were issued over 7 years prior to the issuance of the motion to dismiss and relates to events that occurred between 13 and 14 years ago. The pre-commencement delay is between 5-6 years. He also looked at the post-commencement delay, which he broke down into four distinct periods (1) delay in service of the summons…(2) delay in exchange of the pleadings… (3) delay in the discovery process and (4) delays since February 2016 with no steps whatsoever being taken.
The Claimant did not dispute that the delay was an inordinate and inexcusable. Barrett J agreed. The sole issue that remained for Barrett J to decide was the balance of justice and the issue of prejudice. He referred to seven distinct factors which influenced him in this regard:
- The best part of six years before proceedings were issued and the Claimant made no intimation of a claim to the Defendant at any time prior to the proceedings being served.
- From the outset of the proceedings, the Defendant complained of the Claimant's delay.
- Since the service of the Summons, the Claimant had taken no voluntary step to progress the proceedings – every step they took had been done pursuant to a Court Order or in the context of the Motion brought by the Defendants.
- This claim of professional negligence had been hanging over the Defendant for a considerable time and had significant impact on its professional indemnity insurance and its professional reputation.
- The case would almost exclusively turn on oral evidence – therefore the lapse of time was especially prejudicial.
- The case would come on for hearing 14 or 15 years after the events that were the subject of the proceedings.
- There was actual prejudice because the Defendants had set out certain witnesses who could give evidence on what occurred back in 2005/2006 were no longer available due to death or emigration.
Given these factors, Barrett J considered that the balance of justice [lay] in favour of the Court granting an order pursuant to its inherent jurisdiction dismissing the proceedings in the interest of justice and on the grounds of inordinate and inexcusable delay and also for want of prosecution on the part of the [Claimant] since the commencement of the proceedings.
Lessons for Defendants
The most striking aspect of this case however was how a significant number of the factors taken into account by Barrett J when considering the balance of justice and prejudice related to the Defendant's conducted the proceedings. For example:
- from the moment the proceedings were served, the Defendant complained about the delay;
- the Defendant decided from the outset to take a robust approach to the Defence and therefore it motioned the Claimant whenever he was in default.
- the Defendant also monitored the impact the claim was having on their professional indemnity insurance and the availability of potential witnesses so that they could point to actual prejudice.
Defendants and their insurers should not be afraid to take a proactive approach to professional indemnity claims and advise Claimants that delays in the proceedings will not be tolerated. They should also be willing to incur the cost of seeking Court Orders to keep proceedings on track as this will put them in a much better position to bring strike out applications.
Finally, High Court judges are becoming less lenient on dilatory claimants. The time is right for Defendants and their insurers to review dormant claims to see whether to bring a strike out application.
[DWF acted for the Defendant]